QC's legal advice proves there is no general public right to navigate non-tidal river

[FishingMagic]

David Hart, a leading QC, has provided unequivocal legal advice which confirms once and for all the position about the lawfulness of canoeing and other paddlesports on rivers. The advice could not be any clearer that there is no general public right.


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[greenie62]

Sorry - but as has been pointed-out before by PJ among others - a lawyers advice does not prove anything. It takes the appropriate court's judgement to do that - together with results of subsequent appeals! :doh:

 

[binka]

I welcome the announcement but expect that, as in the case of the then Sports Minister Richard Benyon announcing that PRN's cannot be assumed, it will be completely ignored by the hard core of militant paddlers who are still reoffending week in, week out, without any intervention.

Regardless of what the Canoeing Governing Bodies advise, the individual paddlers will carry on anyway because:

1) They want to

2) They know there's damned little we as Anglers can do when they're paddling through our swims and disturbing spawning grounds, whilst telling us to f--k off, from the safety of mid-river when we point out their crimes

I choose the word 'crimes' carefully as any response to an abusive effect escalates the civil offence of Trespass to a criminal offence of Aggravated Trespass as defined by the Crown Prosecution Service themselves.

If this news is so significant in relation to defining the Law let's now see the Angling Trust and the Environment Agency (the latter especially) in joint enforcement operations, carrying out stings using motorised launches on troubled stretches of water.

The two agencies already work together on a multitude of issues and projects so let's see this one get some priority.

Paddlers will only change their habits if they know there is a reasonable risk of getting caught.

I will be contacting my club secretary to request this kind of action via our membership of the Angling Trust, as the offenders are repeat offenders on a weekly basis I will expect action to be taken and wanting to know if not, then why not?

As I say I welcome the news, it's a start but only a start which now needs to be backed up with enforcement and publicising of the consequences to those who are caught.

 

[thecrow]

When will the Angling Trust stop putting out these headline publicity shots that have no substance, I bet the members of "song of the paddle" are quaking in their kayaks.

Just because someone says something is so doesn't make it so, is this the advice commissioned by the Angling Trust that Mark Lloyd said would result in the Trust making a further public statement almost certainly by the end of November (2016) ?

 

[Neil Maidment]

Very poor choice of wording from the Angling Trust. They have paid for legal advice, I assume they sought the opinion, nothing more than that. Do they expect the average paddler, or the myriad of companies who operate on many rivers, to heed that advice and cease what they're doing?

Those companies will only be affected if a case comes to court and is proven against them. Their insurance companies might then revise their policies and stop others from following suit.

QC opinion is not cheap! Maybe financing a full prosecution is now more likely as a next step rather than people withdrawing their case or backing down when confronted with such opinions?

 

[binka]

They have paid for legal advice, I assume they sought the opinion, nothing more than that. Do they expect the average paddler, or the myriad of companies who operate on many rivers, to heed that advice and cease what they're doing?

Those companies will only be affected if a case comes to court and is proven against them. Their insurance companies might then revise their policies and stop others from following suit.

QC opinion is not cheap! Maybe financing a full prosecution is now a more likely as a next step rather than people withdrawing their case or backing down when confronted with such opinions?

I agree completely Neil.

I don't know what the attitude of the paddlers is like in your part of the world but if it's anything like in mine, even after a string of successful prosecutions, the whole thing will need a blitz of continual enforcement before any impact is made.

The paddlers simply don't care, it's a quick F-You and catch me if you can!

Without the enforcement the money may as well have been flushed down the bog but I'm hoping that some effective campaign will now be planned.

I won't hold my breath though.

---------- Post added at 20:21 ---------- Previous post was at 20:08 ----------

As an additional question...

Will the Angling Trust now be ensuring that the Canal & River Trust acknowledge this opinion and that they advise paddlers accordingly?

 

[floatfish]

Whilst it said to be illegal to use a Canoe on the Rivers,stopping them is difficult, if not impossible. Some Canoe clubs have agreement with land owners to launch and recover Canoes from the land owners property.

Those who don't have any agreement can arrive with a vehicle,unload and launch in almost less time then it takes to tell the tale.The number of places is massive that they can operate from. Once on water they do as said above, do as they like, when they want to land, again only they and the vehicle drivers know where and when. Policing this situation with the assets available to the authorities today is all but mission impossible.

Sad to say we will be putting up with these unwanted visitors to our fishing swims for a long time to come.

 

[binka]

Those who don't have any agreement can arrive with a vehicle,unload and launch in almost less time then it takes to tell the tale.The number of places is massive that they can operate from. Once on water they do as said above, do as they like, when they want to land, again only they and the vehicle drivers know where and when. Policing this situation with the assets available to the authorities today is all but mission impossible.

(

I do agree.

However there are certain 'hotspots' which are frequented by certain regulars and these are prime candidates for holding up and making an example of imo.

It's as simple as the Angling Trust and the Environment Agency working together to be on site at any one of these problem locations at what are fairly narrow timeframes, along with the equipment they already have, and getting these people off the water and into court.

We pay our way and neither organisation would likely exist in their current form were it not for Angling money.

If the Environment Agency can check licences from a motor launch then why can't they use the same to enforce the Law and protect our fishing?

 

[thecrow]

If the Environment Agency can check licences from a motor launch then why can't they use the same to enforce the Law and protect our fishing?

IMO Steve its all about expenditure and gain because the more they can catch fishing without a rod licence the more they can publicise it and use it as a tool to put others off fishing without paying for one.

Its a double win for them, on the one hand they shout from the rooftops about the amount of none licence holding anglers they find therefor convincing the average angler that pays for a licence that their money is being spent well while on the other hand using it as a warning to those that would consider fishing without a licence and so collecting more in licence revenue. IMO its a case of what it costs them to gain this publicity against what they gain in kudos with anglers and the extra revenue gained

Carrying out these well publicised operations now costs the EA even less as they now have 300 dedicated anglers that have volunteered to do the work that we pay the EA to do.

The Angling Trust even help them in this by publishing the names of anglers that have been caught without a licence although that is not surprising though as IMO the Trust are in the financial pocket of the EA since they accepted money from them.

Your comment about none of them existing (certainly the fisheries arm of the EA) without anglers money is spot on unfortunately self interest and pleasing political and financial masters is higher on the agenda's of both organisations otherwise they would do what you suggest, just imagine the publicity they could gain from that but then there would be no money in it would there?

 

[binka]

IMO Steve its all about expenditure and gain because the more they can catch fishing without a rod licence the more they can publicise it and use it as a tool to put others off fishing without paying for one.

Its a double win for them, on the one hand they shout from the rooftops about the amount of none licence holding anglers they find therefor convincing the average angler that pays for a licence that their money is being spent well while on the other hand using it as a warning to those that would consider fishing without a licence and so collecting more in licence revenue. IMO its a case of what it costs them to gain this publicity against what they gain in kudos with anglers and the extra revenue gained

Carrying out these well publicised operations now costs the EA even less as they now have 300 dedicated anglers that have volunteered to do the work that we pay the EA to do.

The Angling Trust even help them in this by publishing the names of anglers that have been caught without a licence although that is not surprising though as IMO the Trust are in the financial pocket of the EA since they accepted money from them.

Your comment about none of them existing (certainly the fisheries arm of the EA) without anglers money is spot on unfortunately self interest and pleasing political and financial masters is higher on the agenda's of both organisations otherwise they would do what you suggest, just imagine the publicity they could gain from that but then there would be no money in it would there?

The bottom line for me Graham is that we shouldn't be subject, as paying Anglers, to the disruption and vitriol that we have to suffer on a regular basis.

We've fished together on one such occasion and the perpetrators in that instance continued their tirade well down river and subjected other anglers, who really had nothing at all to do with the initial confrontation, to their foul mouthed tirade as well.

I'm not only sick and tired of it, I'm sick and tired of nothing being done about it on a practical level.

I'm struggling to think of any other part of society where it would be tolerated.

Canal & River Trust appear to be completely upside down on it and the paddling organisations and more notably the paddlers themselves aren't going to take a blind bit of notice of this announcement unless it is enforced at ground level.

Otherwise it's just a load of money, hot air and another Richard Benyon moment.

---------- Post added at 22:18 ---------- Previous post was at 21:43 ----------

To add...

I've sent the following request to Canal & River Trust, I have received an acknowledgment to say that they hope to reply within two days:

Dear Canal & River Trust,

I would like to draw your attention to the recent advice published by David Hart QC on the subject of Public Rights of Navigation on non-tidal waterways in relation to illegal paddlers using canoes and kayaks, details of which may be found here:

QC's legal advice proves there is no general public right to navigate non-tidal rivers in England and Wales - The Angling Trust

I will be lobbying the Angling Trust and Environment Agency with regard to carrying out actual enforcement work and prosecution of offenders.

I would be grateful if Canal & River Trust would clarify their position on the following:

1) Do Canal & River Trust acknowledge this advice?

2) Will Canal & River Trust be advising canoe & kayak users accordingly and if not what advice will Canal & River Trust be issuing with regard to Public Right of Navigation?

I appreciate your cooperation.

Regards,

At least this should clarify their position on the matter which in my experience has previously been at odds with the Angling Trust's stance, at least on the stretches of river which I regularly frequent.

I think the more that we can 'weed out' agencies and organisations who appear to be at odds with each other in terms of their own policy (or interpretation/clarification of it) then the better chance we have of getting the Angling Trust and Environment Agency to take enforcement action and prosecute the offenders.

 

[Peter Jacobs]

While this legal opinion is a valuable tool in the anglers armoury it will take a substantial prosecution to get the paddlers and their association to firstly take notice and secondly to comply.

Until and unless there is a precedent case then the current status quo will simply continue.

It will be interesting to see the canoe organisation's response though.

The paddlers are obviously currently very content with the current situation mainly brought about by the Rev Caffyn withdrawing his case rather than going forward and losing.

Even though a landmark case will be expensive it is the only proper solution to establish the law for once and all.

 

[binka]

This is very bizarre.

To save you having to refer to the previous page in this thread I contacted Canal and River Trust with the following question:


Dear Canal & River Trust,

I would like to draw your attention to the recent advice published by David Hart QC on the subject of Public Rights of Navigation on non-tidal waterways in relation to illegal paddlers using canoes and kayaks, details of which may be found here:

QC's legal advice proves there is no general public right to navigate non-tidal rivers in England and Wales - The Angling Trust

I will be lobbying the Angling Trust and Environment Agency with regard to carrying out actual enforcement work and prosecution of offenders.

I would be grateful if Canal & River Trust would clarify their position on the following:

1) Do Canal & River Trust acknowledge this advice?

2) Will Canal & River Trust be advising canoe & kayak users accordingly and if not what advice will Canal & River Trust be issuing with regard to Public Right of Navigation?

I appreciate your cooperation.


This is the response I've received:


Thank you for your email. All craft on our waters are required to have a licence, which includes canoes, kayaks, rowing boats and paddle boards. Lots of information can be found on our website about this so people should be aware of what is required. We do also get a number of telephone enquiries to check what they need.

Our Enforcement officers and data checkers patrol the waterways checking that boats have the correct licences, but due to limited resources this is done on a weekly or fortnightly basis, so it is a case of catching people using the waterways to check these. Prosecution is always a last resort as can be timely and expensive so we would give the offenders opportunity to purchase a licence before we would consider this action. Being a charity we would hope that people respect this, and act fairly to those who do pay for their licence.

Kind regards

I have responded to point out that my enquiry was in relation to Public Rights of Navigation and not licensing, and have again asked Canal & River Trust to clarify their position on the matter specifically in relation to the questions posed in the initial enquiry.

 

[thecrow]

Prosecution is always a last resort as can be timely and expensive so we would give the offenders opportunity to purchase a licence before we would consider this action.

Not much of a cop out answer was it, the bit above amazed me perhaps the EA could win even more friends if they did the same?

If I had any I would be pulling my hair out

 

[chris osborne 2]

Why would the environment agency take out legal action against a group of people that they sell licences to?

And can it be assumed that all these angry people on here have never been in a canoe whilst getting abuse and threats shouted at them from fishermen, it's a 2 way street. I have been fishing for 30yrs and never had abuse from canoes, but I have from fishermen when in my canoe which I have been using for 2yrs.

 

[Peter Jacobs]

Why would the environment agency take out legal action against a group of people that they sell licences to?

Because quite simply that, once proved as precedent, then they are obliged to uphold the law of the land.

I have fished for over 60 years and in that time have encountered all types of paddlers, good and bad, but, in the last 2 to 3 years there have been some very unsavoury incidents with paddlers on the Hampshire Avon resulting in having to call the police.

Only by the legal establishment of the law regarding PRN will this problem, an it is a burgeoning problem, be solved.
Then the EA and everyone else involved will have to uphold and abide by the decision.
-------- Post added at 12:12 ---------- Previous post was at 12:06 ----------

And can it be assumed that all these angry people on here have never been in a canoe whilst getting abuse and threats shouted at them from fishermen, it's a 2 way street.

As a younger man I did the Devizes to Westminster canoe race twice, once in te juniors and again as a senior, and in all the practice and race time never, ever, had any problems with anglers.

That said, we were however taught to give a proper space to the angler on his bank and not to deliberately thrash through his swim.

I have no problem, nor am I at all angry, with paddlers on venues where they are legally allowed to be, providing that they respect other river users, including anglers.

Where I do have a problem is with paddlers who are on rivers with no PRN who are knowingly trespassing.

 

[thecrow]

I have been fishing for eyes

Are they an invasive species

 

[chris osborne 2]

Is there a list of rivers to show if it has prn so I can compare it to those that the canoe licence allows us to use?

 

[Peter Jacobs]

Is there a list of rivers to show if it has prn so I can compare it to those that the canoe licence allows us to use?

If you are referring to the British Canoeing (BC) "license" granted by virtue of membership then it has it be noted that even BC themselves accept that on non-tidal rivers and canals that there are differeing opinion on PRN, however, they have chosen to list many that they believe are acceptable (but only to themselves)

Reference their own website:

"Non Tidal Rivers
In England and Wales there are differing opinions regarding Public Rights of Navigation (PRN) along non-tidal waters. The bed and banks of all rivers and canals are privately owned, and many believe this gives the landowner the right to control navigation. British Canoeing believes recent legal research has cast significant doubt upon this interpretation of the law. Some waterways do have a widely recognised Public Right of Navigation, such as the Upper Severn and the Wye. Many other waterways find their status disputed despite clear evidence of both Statutory and Common Law rights of navigation"

It follows that any comparison would be of very limited value until and unless legally binding precedent has been tested and proven in the High Court.

The High Court decision being necessary to provide for binding precedent for all future cases in lower courts.

 

[binka]

I've had a further response from the Canal & River Trust.

The enquiry has been passed onto their Senior Property Lawyer who will in turn respond to me, as the questions posed relate in particular to the announcement by David Hart QC I would imagine that this will need some digesting and take a while but I will update the thread when the Canal & River Trust have confirmed their official position.

 

[chris osborne 2]

What is british canoeing's response to this? seeing as they are the governing body for canoeing in the uk